On review, the Supreme Court
reversed, and reinstated defendant's convictions. Wyatt II, 331 Or
335. The court did not address the substance of our analysis but held,
instead, that the propriety of the trial court's preclusion of Grimsbo's testimony
as a discovery sanction had not been preserved for our review because defense
counsel had failed to object to that sanction or to advocate for a less onerous
sanction. Specifically, the "failure to object to the particular sanction
imposed by the judge or, in the alternative, to argue for some other sanction,
fails to preserve a claim on appeal that the judge erred in failing to consider
the availability of a less onerous sanction." Id. at 343 (footnote
omitted).

Petitioner then brought this action, raising
a battery of allegations of inadequacy of trial counsel. Two are pertinent:

"(1) Trial counsel failed to timely advise
the prosecution that expert witness, Dr. Ray Grimsbo, would be called to rebut
the opinion testimony of Susan Hormann * * *. This violation resulted in the
exclusion of Dr. Grimsbo's testimony, which was crucial to rebut the
testimony of Ms. Hormann. * * *

"* * * * *

"(3) Trial counsel failed to request that
the trial court impose a lesser sanction, other than the exclusion of Dr.
Grimsbo's testimony, which if the court had allowed, would have allowed Dr.
Grimsbo to testify at trial; but if denied, would have preserved the issue for
review on appeal."

The post-conviction court, after
receiving evidentiary submissions from the parties, agreed with petitioner that
trial counsel had been deficient in each of those respects and that those
defaults by counsel resulted in such prejudice as to require a new trial:

"At the time defense counsel failed to act and
considering all the circumstances, counsel should have been aware that the
testimony of the expert defense witness was essential to an effective defense,
should have disclosed the expert, and, having failed to disclose the expert
should have objected to the trial court's error in failing to consider and
select a less draconian, but still sufficient sanction for the error of
counsel.

"The Court of Appeals' rationale for
finding that the trial court's error was not harmless demonstrates the
prejudicial nature of counsel's error. State v. Wyatt, 155 Or App 192,
204, 962 P2d 780 (1998). The court stated, 'we cannot say that there is little
likelihood that [the expert defense witness'] testimony would have affected the
verdict. However "fantastic" the [defense theory] might seem * * *
the jury in the first trial could not agree on guilt.' Id. at 204. In
the second trial, the prosecution altered the testimony of its expert witness
from that in the first trial in order to exploit what appeared to be a 'gap' in
the defense theory. Had the expert defense witness been able to testify and
been believed, he could have explained this otherwise 'seemingly inexplicable
"gap."' Id. at 204."

(Brackets and ellipsis in original.)

In order to prove prejudice of a
constitutional magnitude, a petitioner must show that counsel's advice, acts,
or omissions had a tendency to affect the result of the prosecution. Stevens
v. State of Oregon, 322 Or 101, 110, 902 P2d 1137 (1995). Whether a
petitioner has demonstrated prejudice is a question of law that, in turn, may
depend on the post-conviction court's findings of fact. Ashley v. Hoyt,
139 Or App 385, 395 n 8, 912 P2d 393 (1996). We are bound by the
post-conviction court's factual findings if they are supported by evidence in
the record. Cunningham v. Thompson, 186 Or App 221, 226, 62 P3d 823, modified
on recons, 188 Or App 289, 71 P3d 110 (2003), rev den, 337 Or 327
(2004). As explained below, we conclude that the post-conviction court's
finding of prejudice was correct as a matter of law, and its factual findings
are supported by evidence in the record.

Against that general backdrop, we
return to the particular circumstances of petitioner's criminal trial,
including the evidence presented at trial, because the state's "no
prejudice" contention on this appeal must be assessed in light of those
facts, as well as additional evidence adduced in the post-conviction trial.
Many of the same facts were recounted in our opinion in Wyatt I.

Petitioner's convictions arose from
events that occurred in July 1995. Petitioner was married to the victim's
mother, Carol Wyatt. Petitioner and Carol Wyatt had a history of domestic
disputes, and were contemplating divorce at the time of those events. Wyatt
I, 155 Or App at 194. On the evening of July 23, petitioner and the
nine-year-old victim camped out in a tent in the yard of their home. The
victim testified that she awoke twice during the night and that, on each of
those occasions, petitioner gave her pills. Id. at 194-95. The
following morning, after petitioner went to work, Carol Wyatt called him and
told him that the victim had been drugged and probably raped, and accused
petitioner of having raped the victim. Id. at 195.

Later that day, the victim was
examined, first by a pediatrician, and later by the CARES program.(3)
The pediatrician noted bleeding and irritation in the vaginal area and a lack
of hymenal tissues. Id. When the victim was examined at CARES by
Dr. Keltner, she showed signs of having been drugged, as well as signs of
acute vaginal trauma. Keltner arranged for tests, including a rape kit test,
as well as a urine toxicology screen, and turned over the victim's bloody
underwear to the police. Id. at 195-96. The toxicology screen showed
the presence of morphine, codeine, oxycodone, and acetaminophen. Id. at
196. The rape kit did not reveal the presence of sperm, seminal fluid, or
pubic hairs. Id. The underwear, however, contained a small number of
petitioner's sperm, as well as epithelial cells that were consistent with
having come from the victim. Id. at 196-97.

Petitioner was charged with the
above-noted offenses, and was tried, for the first time, in the spring of
1996. In that trial,

"[t]he state's theory was straightforward: [Petitioner]
had drugged complainant and then raped her. As support for that theory, the
state relied substantially, albeit not exclusively, on complainant's, [Carol] Wyatt's,
and Keltner's testimony, as well as that of forensic experts, Kevin Humphries
of the Oregon State Police Crime Lab, who tested and analyzed the sleeping bag,
underpants, and swabs, and Susan Hormann, a specialist in serology and DNA
testing at the OSP Crime Lab. Complainant had no memory of a rape and, with a
few variations, generally reiterated the account she had given to Keltner and
to law enforcement personnel. [Carol] Wyatt testified that she had great
difficulty rousing complainant on the morning of the 24th, that complainant had
obviously been drugged, and that, when she took off complainant's underwear,
she saw blood on the underpants. [Carol] Wyatt also testified that, when she
subsequently called [petitioner] and told him that complainant had been drugged
and probably raped, he responded, 'You'll never be able to prove that I did
it. You won't find any sperm.'"

Id. at 197.

Petitioner's theory of defense was
that Carol Wyatt, motivated by animosity toward petitioner, had committed the
crimes by taking sperm from earlier intercourse between petitioner and Wyatt,
planting it in the victim's underwear, and then drugging the victim and
sexually assaulting her with a blunt object. Id. at 198.

The first trial resulted in a hung
jury, and petitioner was tried again several months later. In the second
trial, which resulted in petitioner's convictions, the parties again pursued the
same theories generally. However, in the second trial, during the state's
case-in-chief, the state's DNA expert, Hormann, addressed in detail the defense
theory that Carol Wyatt had transferred sperm from intercourse between
petitioner and Wyatt into the victim's underpants. In particular, Hormann
opined that the sperm could not have been transferred from Carol Wyatt's vagina
to the underpants because the epithelial cells found in the underwear could not
have come from her and because, had Carol Wyatt extracted the sperm from her
vagina and planted it in the victim's underwear, Hormann would have expected to
find some of Wyatt's epithelial cells intermixed with the sperm, which she did
not. Id. at 198-99.

After Hormann testified, defense
counsel indicated to the prosecutor that he might call Grimsbo, a forensic
scientist, in response to Hormann's testimony. The prosecutor telephoned
defense counsel later that evening to inquire whether Grimsbo would be called,
and defense counsel said that he did not think so, but was not certain.
Thereafter, defense counsel decided that he would call Grimsbo, and left a
message for the prosecutor to that effect, which the prosecutor did not receive
until the next day. Id. at 199-200.

When trial reconvened the next
morning, the prosecutor objected to Grimsbo's testimony on the ground that
there had been a discovery violation because Grimsbo had not been declared as a
witness in advance. The prosecutor argued that defense counsel had Hormann's
report well in advance of trial and should have anticipated his need to call
Grimsbo to rebut that testimony. The court agreed with the prosecutor's
argument and concluded that Grimsbo's testimony should be excluded due to the
discovery violation in light of the "stage of the proceedings." Id.
at 201. Petitioner's subsequent offer of proof indicated that Grimsbo would
have testified that the absence of Carol Wyatt's epithelial cells from the
sperm was not unusual, given that the sperm sample was extremely minute (viz.,
80 sperm, whereas a normal ejaculation would produce over 300,000 sperm). Id.
at 200.

The jury, by a 10-2 verdict,
convicted petitioner on the counts that are collaterally challenged here. As
noted, in Wyatt I, we reversed defendant's convictions, concluding that
the trial court had erred in precluding Grimsbo's testimony as a discovery
sanction and that error was not harmless; and the Supreme Court reinstated the
convictions, concluding that trial counsel's failure to timely and specifically
object to the preclusion sanction rendered the asserted error unreviewable. As
further noted, the post-conviction court determined that trial counsel had been
constitutionally inadequate both in (1) failing to comply with the
requirements of the reciprocal discovery statutes, which led to the imposition
of the preclusion sanction, and (2) failing to advocate for a less onerous
sanction for that violation. The post-conviction court also determined that
those defaults were so prejudicial as to warrant the allowance of a new trial.

We turn, then, to the state's
contentions that the post-conviction court erred in granting relief. The
state, as noted, does not dispute that trial counsel failed to exercise
reasonable professional skill and judgment, as determined by the
post-conviction court. Rather, the state asserts that the court's assessment
of consequent prejudice was erroneous in either, or both, of two respects.
First, the state argues that petitioner was unable to show prejudice because petitioner
did not demonstrate that, even if counsel had made a timely argument for a
lesser sanction, the criminal trial court would have admitted the evidence.
Second, and alternatively, the state asserts that, even if the criminal trial
court had admitted Grimsbo's testimony, it would not have affected the jury's
verdict.

The state's first argument is
unavailing, because it ignores the post-conviction court's determination that
counsel breached the standard of constitutionally adequate representation not
only by failing to advocate for a less onerous discovery sanction but also
by failing to timely disclose Grimsbo as a defense witness pursuant to ORS
135.835 and ORS 135.845. Specifically, the post-conviction court determined
that, "[a]t the time defense counsel failed to act in considering all the
circumstances, counsel should have been aware that the testimony of the expert
defense witness was essential to an effective defense, should have disclosed
the expert, and, having failed to disclose the expert, should have objected
to the trial court's error in failing to consider and select a less draconian,
but still sufficient, sanction for the error of counsel." (Emphasis
added.) But for counsel's actionable default in violating the discovery
statutes, there would not have been any occasion for any sanction.
Whether the trial court would have imposed a "less onerous" sanction
than preclusion would be a moot point because no sanction would ever
have been imposed. Bluntly, but for counsel's default, Grimsbo would have
testified.

The issue of actionable prejudice
thus reduces to whether the absence, or nonpresentation, of Grimsbo's testimony
had the requisite "tendency to affect the result of the
prosecution." Steven, 322 Or at 110. The state contends,
particularly, that petitioner's theory of the case was so "highly
unlikely" it would have been "all but impossible" for a jury to
credit it, and thus Grimsbo's testimony would not have had a tendency to affect
the verdict. That argument warrants more extended discussion.

We note at the outset--as did the
trial court--that we have previously, albeit in a collateral context, touched
on that question. Specifically, in Wyatt I, 155 Or App at 204, in
addressing whether the preclusion of Grimsbo's testimony required reversal, we
stated:

"The state asserts, nevertheless, that any
error was harmless. The state emphasizes the strength of the prosecution's
case and asserts that defendant's 'transferred sperm' scenario was 'fantastic'
and depended, ultimately, on defendant's credibility, which the jury
necessarily rejected.

"Based on our review of the record, we
cannot say that there is little likelihood that Grimsbo's testimony would have
affected the verdict. However 'fantastic' the 'transferred sperm' hypothesis
might seem, at least to the state, the jury in the first trial could not agree
on guilt. In the first trial, the state had not focused on, and exploited, the
'gap' in the 'transferred sperm' theory--the absence of Wyatt's DNA. In the
second trial, through Hormann, it did. Grimsbo's testimony, if believed, would
have explained that seemingly inexplicable 'gap.' The error was not
harmless."

(Citations omitted.)

That discussion, however, is not
dispositive here for at least three reasons. First, the Supreme Court, by
reversing our decision in Wyatt I on grounds of nonpreservation,
rendered our discussion of the effect of the preclusion of Grimsbo's testimony
a legal nullity. Second, although there may be substantial overlap between the
assessment of "harmlessness" of evidentiary error for purposes of
Article VII (Amended), section 3, of the Oregon Constitution and the
determination of whether nonpresentation of evidence had the requisite
"tendency to effect" for purposes of post-conviction relief, we do
not assume that the two are always congruent. But see Trotter v. Santos,
212 Or App 473, 478, 157 P3d 1233, adh'd to on recons, 214 Or App 696,
167 P3d 488, rev den, 343 Or 691 (2007) (relying on "harmless
error" cases in concluding that the petitioner was entitled to
post-conviction relief). Finally, as the state emphasizes, our discussion in Wyatt
I was, necessarily, predicated on the content of the criminal trial
record--but the state, in the post-conviction relief proceedings, submitted
additional evidence describing testimony that the prosecutor would have
presented to rebut Grimsbo's testimony if he had, in fact, testified.

We proceed, then, to the evidence in
the post-conviction record pertaining to the effect of the preclusion of
Grimsbo's testimony. We begin by highlighting some key evidentiary aspects of
petitioner's second trial. Petitioner testified that, shortly before he
entered the tent with the victim, he and Carol Wyatt had consensual sex without
using any form of birth control, and that she was not menstruating. Carol
Wyatt, on the other hand, testified that they had not had sex since July 17,
and that they did not have sex on July 23 because she began menstruating on
July 21. Both testified that, because they used the rhythm method of birth
control, Carol Wyatt kept a chart showing when she menstruated and when they
had sex. Petitioner maintained, however, that Carol Wyatt's recordkeeping on
the chart was not always accurate. The chart supported Carol Wyatt's testimony
that she was menstruating on July 23.

As noted, petitioner's theory of
defense was that Carol Wyatt had taken secretions from her own vagina after
engaging in consensual sex with petitioner, drugged the victim and assaulted
her vagina with some sort of blunt object, and then placed the secretions in
the victim's underwear. Anticipating that theory (from the first trial), the
state's forensic expert, Hormann, testified in the state's case-in-chief that
she discounted petitioner's theory of the case because had the secretions come
from Carol Wyatt's vagina, Hormann would have expected to find some of Carol
Wyatt's epithelial cells intermixed with the sperm.

Petitioner was prepared to offer
Grimsbo's expert testimony to the effect that, because the amount of sperm
found in the victim's underwear was so small, it would not be unusual for no
epithelial cells from Carol Wyatt to be present even if the secretions had been
transferred from her vagina. Thus, Grimsbo's expert opinion would have
contradicted Hormann's expert opinion on that point.

That juxtaposition of Hormann's
testimony and Grimsbo's putative testimony in the second trial is particularly
significant given differences between the state's evidence at the first trial,
which resulted in a hung jury, and the second trial. At the time of the first
trial, Hormann testified that the underwear contained petitioner's sperm, as
well as epithelial cells that were consistent with the victim. She did not
analyze whether the epithelial cells were consistent with anyone else. Defense
counsel relied heavily on that point in closing argument in the first trial:

"There has been no question in this case
about whose sperm this was. Never has been, never will be. That is not the
issue. The question is, whose blood did it come in? And why is it that nobody
got a sample of Carol Wyatt to eliminate her as a possible person involved in
this? * * *

"It is Ralph Wyatt's sperm that was found
in there, no question about it. The other question though, was it delivered
with some cells from Carol Wyatt, and there is no answer to that question.
Why? Because no one bothered to check."

That trial, as noted, ended in a hung jury.

In the second trial, however, the
state closed that gap in the prosecution's evidence, which defense counsel had
exploited in the first trial. By the time of the second trial, Hormann had
tested Carol Wyatt's DNA and was able to state definitively that the epithelial
cells that were consistent with having come from the victim were not
consistent with having come from Carol Wyatt. Given that testimony, Hormann's
testimony at the second trial that it was not likely that Carol Wyatt could
have transferred the secretions from her vagina without also transferring her
own epithelial cells was extremely damaging to the defense theory of the case.

Grimsbo's putative testimony would
have offered at least a partial answer to Hormann's revamped testimony,
reinforcing the defense's "transferred sperm" theory. That is,
Hormann's testimony that it was "not likely" that Carol Wyatt could
have done this without transferring her own epithelial cells would have been
contradicted by Grimsbo's testimony that, in his opinion, the absence of Carol
Wyatt's epithelial cells from such a small sample would not be unusual.

We note, further, that, even without
Grimsbo's evidence to rebut Hormann's testimony, the jury had a difficult time
reaching a verdict. When the jury first attempted to return a verdict, it
found defendant not guilty on two of the charges, but split 9-3 on the rape and
sexual abuse charges, and 8-4 on the delivery of a controlled substance
charge. When they returned a valid verdict the following week, the verdict on
each count was 10-2. In sum, the case was as close as a case can be and still
result in conviction.

The state contends, nevertheless,
that evidence it presented at the post-conviction trial as to how Hormann would
have rebutted Grimsbo's testimony if he had testified demonstrates that
petitioner incurred no prejudice warranting the allowance of a new trial.
Specifically, at the post-conviction trial, the state offered an affidavit from
Hormann that explained that she would have made use of Carol Wyatt's testimony
that she was menstruating at the time of the crime to explain that a
post-coital sample of secretions taken from a woman's vagina under such
circumstances would consist not only of vaginal secretions and seminal fluid
with sperm, but also menstrual blood. She further would have testified that it
would be "highly improbable" that a woman could collect a post-coital
sample of secretions taken from her vagina without also collecting some of her
own epithelial cells.

In short, Hormann would have used
Carol Wyatt's evidence about menstruation to try to rebut part of Grimsbo's
testimony. However, given that the defense theory of the case was that Carol
Wyatt was not credible--and, in fact, committed the crimes herself--Hormann's
evidence on that point, which depended on the veracity of Carol Wyatt, was only
as strong as Carol Wyatt's evidence.

Hormann's remaining point, that it
would be "highly improbable" that a woman could collect vaginal
secretions in the manner asserted by the defense, reduces to a classic
"battle of the experts." That is, Grimsbo would have testified that
the absence of Carol Wyatt's epithelial cells from the sperm was "not
unusual" under these circumstances, while Hormann would have testified
that it was "highly improbable." Thus, Grimsbo's testimony
"would have called into question pivotal testimony" by one of the
state's witnesses. Stevens, 322 Or at 110.

Given the foregoing, we conclude that
the post-conviction court did not err in determining that the exclusion of
Grimsbo's testimony had the requisite "tendency to affect the result"
of petitioner's second trial. Id.

"Except as otherwise provided * * *, the
defense shall disclose to the district attorney the following material and
information within the possession or control of the defense:

"(1) The names and addresses of persons,
including the defendant, whom the defense intends to call as witnesses at the
trial, together with relevant written or recorded statements or memoranda of
any oral statements of such persons other than the defendant."

"(1) The obligations to disclose shall be
performed as soon as practicable following the filing of an indictment or
information in the circuit court * * *. The court may supervise the exercise
of discovery to the extent necessary to insure that it proceeds properly and
expeditiously.

"(2) If, after complying with the
provisions of ORS 135.805 to 135.873 and 135.970, a party finds, either before
or during trial, additional material or information which is subject to or
covered by these provisions, the party must promptly notify the other party of
the additional material or information."